sheriff drug money file merged

8/17/2019 Sheriff Drug Money File Merged

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Case: 25CI2:16-cv-00009 Document #: 1 Filed: 02/12/2016 Page 2 of 3


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IN THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT

OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI, EX REL. PLAINTIFF

HINDS COUNTY SHERIFF’S DEPARTMENT

VS. Civil Cause No. 16-009

ONE MILLION SIXTY EIGHT THOUSAND

SEVEN HUNDRED TWENTY ONE DOLLARS

($1,068,721.00) IN UNITED STATES CURRENCY DEFENDANT

MOTION FOR JOINDER

COMES NOW, Robert Shuler Smith, District Attorney of Hinds County, Mississippi and

files this Motion seeking Joinder in the above styled and numbered cause and would show unto

this Honorable Court the following, to-wit:

1. That the above styled suit was filed by Attorney B. Parker Berry on behalf of the Hinds

County Sheriff’s Department on February 12, 2016. Attorney B. Parker Berry is not affiliated

with the Hinds County District Attorney’s Office.

2. That this action is a civil forfeiture proceeding wherein the Hinds County Sheriff’s

Department is seeking the forfeiture of the above listed funds for having been used or being

intended to be used for illegal drug activities in violation of the Uniform Controlled Substances

Law. See MCA §41-29-153 et seq.

3. That the Office of the Hinds County District Attorney is a designated ‘law enforcement

agency’ permitted to share in the proceeds of a forfeiture under the Mississippi statutes governing

same. See Mississippi Attorney General Opinion Mellon (September 10, 1992) .

4. That pursuant to Mississippi Rule of Civil Procedure 19 (a)(2), should a person, subject to the

jurisdiction of this Court, claim an interest relating to the subject of the action and that person is



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so situated that the disposition of the action in his absence may (i) as a practical matter impair or

impede his ability to protect that interest, then that person shall be joined as a party in the action.

5. Over the past several weeks, assurances have been made by the Sheriff of Hinds County that

the Office of the District Attorney will continue to be allowed to participate in this forfeiture

proceeding and will thereafter be authorized by MCA §41-29-181 to share in the proceeds.

These assurances have created an interest, as is contemplated by Rule 19(a)(2), relating to the

subject of this action authorizing the District Attorney for Hinds County to join in this

proceeding. Should the Court deny this joinder, then there is no party protecting the interest of

the District Attorney, and that interest will be irrevocably impaired and impeded.

6. That pursuant to Mississippi Rule of Civil Procedure 19 (a)(2), should a person, subject to the

jurisdiction of this Court, claim an interest relating to the subject of the action and that person is

so situated that the disposition of the action in his absence may (ii) leave any of the persons

already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent

obligations by reason of his claimed interest, then that person shall be joined as a party in the

action.

7. The Hinds County Sheriff, a party to this action, has repeatedly made assurances to the

District Attorney’s Office that the District Attorney’s Office will receive Twenty (20%) percent

of the forfeited funds in accordance with MCA §41-29-181. The statute requires that the ‘law

enforcement agency’ participate in the forfeiture proceedings in order to qualify for 20% of the

proceeds. Although it is understood that the District Attorney’s Office has heretofore

participated in this proceeding by meeting with the Sheriff on several occasions as well as

providing him with a detailed memorandum on Mississippi statutes and providing legal advice

dealing with civil forfeitures, it is nevertheless the desire of the District Attorney to be properly



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joined and in doing so, continue to participate in the proceedings.

8. Rule 19 (a)(2) says joinder shall be done if the absence of joining a party will leave any of the

parties already involved subject to a substantial risk of incurring double, multiple or otherwise

inconsistent obligations by reason of his claimed interest. If the District Attorney is not joined,

and since there is no other ‘law enforcement agency’ other than the Hinds County Sheriff

involved in this seizure, then MCA §41-29-181(2)(a) mandates that the Sheriff deposit 20% of

the proceeds of the forfeiture to the State Treasurer to be deposited in the General Fund of the

State. On the one hand there is the District Attorney, who, based on the previous assurances by

the Hinds County Sheriff and based on participation already provided, will insist on the Sheriff

paying the 20% to the Office of the District Attorney. On the other hand, if the District Attorney

is not joined, the State Treasurer would also demand the Sheriff to pay them the 20% as MCA

§41-29-181(2)(a) requires. Clearly this would subject the Hinds County Sheriff to the substantial

risk of incurring double and otherwise inconsistent obligations. In this instance therefore, that

person shall be joined as a party in the action. By joining the District Attorney and allowing this

office to continue to participate, then the State Treasurer no longer has any interest in this

proceeding and any fear of incurring double or otherwise inconsistent obligations is alleviated.

WHEREFORE, PREMISES CONSIDERED, Movant prays that this Motion for Joinder

be received and filed, and that upon due consideration by the Court, the District Attorney shall be

joined as a party to this action as a Co-Plaintiff.

Respectfully submitted

ROBERT SHULER SMITH

/Robert Shuler Smith/

DISTRICT ATTORNEY



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CERTIFICATE OF SERVICE

I, Robert Shuler Smith, do hereby certify that I have this day caused to be filed via the

MEC the above Motion for Joinder and have had noticed the attorney of record, B. Parker Berry,

as well as Sheriff Victor Mason, Hinds County Sheriff, at his office in Jackson, Ms.

This is the 4th day of March, 2016.

/Robert Shuler Smith/



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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPISECOND JUDICIAL DISTRICT

STATE OF MISSISSIPPI, EX REL. PLAINTIFFHINDS COUNTY SHERIFF’S DEPARTMENT

VS. CIVIL CAUSE NO. 16-9

ONE MILLION SIXTY-EIGHT THOUSANDSEVEN HUNDRED TWENTY-ONE DOLLARS($1,068,721.00) IN UNITED STATES CURRENCY DEFENDANT

RESPONSE IN OPPOSITION TO MOTION FOR JOINDER

COMES NOW the Plaintiff, the State of Mississippi, by and through the Hinds County

Sheriff’s Department (“Sheriff’s Department”), and would respectfully show unto the Court the

following:

Facts

1. On January 25, 2016, One Million Sixty-Eight Thousand Seven Hundred Twenty-One

Dollars ($1,068,721.00) was seized from a vehicle through probable cause by the Sheriff’s

Department on I-20 West Bound at mile marker 31 in Hinds County, pursuant to Miss. Code

Ann. § 41-29-153.

2.

Upon conclusion of an initial criminal investigation of the individuals in the vehicle at the

time of seizure, the Sheriff’s Department made the determination to release the individuals and

not to file criminal charges at that time. The Sheriff’s Department was the only law enforcement

agency involved in the seizure and the following criminal investigation.

3. On February 4, 2016, the Sheriff’s Department and the Hinds County Board of

Supervisors approved the hiring of the undersigned counsel herein to process and file the

underlying civil forfeiture.



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4. On February 12, 2016, the Sheriff’s Department filed its Petition for Forfeiture, while

issuing and publishing summonses to the pertinent parties.

5. On March 4, 2016, the Hinds County District Attorney’s Office (“District Attorney”),

though neither he nor his office participated in the seizure or subsequent criminal investigation,

filed a Motion for Joinder in the instant action.

Argument

6.

The District Attorney seeks joinder by alleging that he has an interest in this matter under

Miss. R. Civ. Pro. 19(a) because the “Hinds County Sheriff … has repeatedly made assurances to

the District Attorney’s Office that the District Attorney’s Office will receive Twenty (20%)

percent of the forfeited funds in accordance with MCA §41-29-181” and “[t]he statute requires

that the ‘law enforcement agency’ participate in the forfeiture proceedings in order to qualify for

20% of the proceeds. Dist. Atty’s Mot., p.2 (emphasis added).

7. However, respectfully, the District Attorney misrepresents the applicable statute

concerning the requirements for law enforcement agencies to participate in the distribution of the

forfeiture proceeds. Miss. Code Ann. § 41-29-181(2) provides:

(2) All other property, real or personal, which is forfeited under this article,

except as otherwise provided in Section 41-29-185, and except as provided in

subsections (3), (7) and (8) of this section, shall be liquidated and, after deductionof court costs and the expenses of liquidation, the proceeds shall be divided and

deposited as follows:

(a) In the event only one (1) law enforcement agency participates in the

underlying criminal case out of which the forfeiture arises, twenty percent (20%)

of the proceeds shall be forwarded to the State Treasurer and deposited in the

General Fund of the state and eighty percent (80%) of the proceeds shall bedeposited and credited to the budget of the participating law enforcement agency.

(b) In the event more than one (1) law enforcement agency participates in the

underlying criminal case out of which the forfeiture arises, eighty percent (80%)of the proceeds shall be deposited and credited to the budget of the law

enforcement agency whose officers initiated the criminal case and twenty percent



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(20%) shall be divided equitably between or among the other participating law

enforcement agencies, and shall be deposited and credited to the budgets of theparticipating law enforcement agencies. In the event that the other participating

law enforcement agencies cannot agree on the division of their twenty percent

(20%), a petition shall be filed by any one of them in the court in which the civil

forfeiture case is brought and the court shall make an equitable division.

(emphasis added).

8.

While the District Attorney alleges, and thus the basis for his “interest” under the

joinder motion, that he or his office must participate in this civil forfeiture proceeding to

be able to claim 20% of the forfeited funds (upon favorable disposition of the underlying

forfeiture case by this Court), this argument is flawed upon a clear reading of Miss. Code

Ann. § 41-29-181. Section 41-29-181(2) is unambiguous in that for a law enforcement

agency to have a claim or interest on forfeited funds, it must have “participate[d] in the

underlying criminal case out of which the forfeiture arises ….” As provided above,

neither the District Attorney nor his office participated in the traffic stop, the seizure or

the subsequent criminal investigation that ultimately was concluded before the District

Attorney even became aware of the instant seizure. The Sheriff’s Department was the

only law enforcement agency that participated in the underlying criminal case out of

which this forfeiture arises.

9.

Therefore, while the Sheriff’s Department would prefer any forfeited funds to

remain in Hinds County for the benefit of its residents, it respectfully asserts that the

District Attorney has no legal claim to any forfeited proceeds in this matter. Accordingly,

the District Attorney has no “interest” under Miss. R. Civ. Pro. 19(a) that will be

impaired or impeded by his absence from this matter, nor is there any risk of the Sheriff’s

Department incurring double, multiple or otherwise inconsistent obligations on any

forfeited proceeds herein.



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WHEREFORE, PREMISES CONSIDERED, the State of Mississippi, ex rel. Hinds

County Sheriff’s Department respectfully requests this Court to deny the Hinds County District

Attorney’s Motion for Joinder, and grant such other relief as may be necessary.

Respectfully submitted, this the 25th day of April, 2016.

STATE OF MISSISSIPPI, EX REL. HINDS

COUNTY SHERIFF’S DEPARTMENT

s/ B. Parker Berry

B. Parker Berry (MB# 104251) Its Attorney

Of Counsel:B. Parker Berry

Butler Snow LLPP.O. Box 6010

Ridgeland, MS 39157

601-985-4402

[email protected]



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CERTIFICATE OF SERVICE

I, B. Parker Berry, attorney for the Hinds County Sheriff’s Department, hereby certify

that on this day I have filed the foregoing document to be served via this Court’s MEC system

upon the following:

Robert Shuler Smith Hinds County District Attorney

SO CERTIFIED, this 25th day of April, 2016.

s/ B. Parker Berry

B. Parker Berry


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